Charles Mac Naughten Sir Francis Beaufort Palmer.

Company precedents for use in relation to companies: subject to ..., Volume 2 online

. (page 84 of 152)
Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 84 of 152)
Font size
QR-code for this ebook


taxation, lodg^ such bill or charges with the proper taxing officer. [Formerly R. 24
of 1890, taken from Bkcy. R. 121.]

[The practice now, although, it may not be strictly in accordance
with Er. 161, 162, is as follows : — As soon as an order directing taxa-
tion of costs is completed, and one of the parties has lodged his bill
for taxation, notice is sent from the registrar's office to all the other
parties of the date for lodging their bills. In cases in which the billfl
have to be lodged with the official receiver or liquidator, the notice
is according to Form 652 ; in other cases it is according to Form 653.
Subsequently, notice of the appointment to tax is sent from the
registrar's office. See Form 654.]

168. Every person whose bill or charges in a winding-up by the Court is or are
to be taxed shall, on application either of the official receiver or the liquidator,
furnish a copy of his bill of charges so to be taxed, on payment at the rate of id.
per folio, which payment shall be charged on the assets of the company. The
official receiver shall call the attention of the liquidator to any items which, in his
opinion, ought to be disallowed or reduced, and may attend or be represented on
the taxation. [Formerly R. 25 of 1890, taken from Bkcy. R. 122. The official
receiver has no right, although the registrar may give him leave, to attend the
taxation. £e Nash, (1896) 1 Q. B. 13.]

104. Where any party to, or person affected by, any proceeding desires to make
an application for an order that he be allowed his costs, or any part of them,
incident to such proceeding, and such application is not made at the time of the
proceeding —

(1.) Such party or person shall serve notice of his intended application on the
official receiver in a winding-up by the Court, and in every winding-up on tiie
liquidator.

(2.) The official receiver (if any) and liquidator may appear on such appUoation
and object thereto.

(3.) No costs of or incident to such application shall be allowed to the applicant
unless the Court is satisfied that the appHcation could not have been made at the
time of the proceeding. [Formerly R. 26 of 1890, taken from Bkqy. R. 123.]

165. Upon the taxation of any bill of costs, charges, or expenses being completed,
the taxing officer shall issue to the person presenting such bill for taxation his
certificate of taxation. The bill of costs, charges, and expenses, together with the
allowance or certificate, shall be filed with the registrar. [Formerly R. 27 of 1890.]

166. Where the bill or charges of any solicitor, manager, accountant^ auctioneer,
broker, or other person employed by an official receiver or liquidator is or are pay-
able out of the assets of the company, a certificate in writing, signed by the official
receiver or liquidator, as the case may be, shall be produced to the taxing officer
setting forth whether any, and if so what, special terms of remuneration have beco
agreed to, and in the case of the bill of costs of a solicitor, a copy of the resolatioa
or other authority sanctioning the employment. [Formerly R. 29 of 1890, taken
from Bkcy. R. 117.]

[This sanction must be obtained before emplojment. See s. 12 (4)
of 1890. If not 80 previously obtained, there is considerable diffi-



Digitized by



Google



COSTS. 667

culty in obtainixig payment. When the official receiver is liquidator,
without a committee of inspection, the authority of the Board of Trade
must be produced. See Be Duncan, (1892) 1 Q. B. 331, 879.]



168. — (1.) Where anj bill of costs, charges, fees, or disbursements which are ReTiew of
payable out of the assets of the company to any solicitor, manager, accountant, f*^*^^ ^^
auctioneer, broker, or other person has been taxed by a registrar of a Court other rjo-jj.
than the High Court, the Board of Trade may require the taxation to be reviewed
by the taxing officer of the High Court.

(2.) In any case in which the Board of Trade require such a review of taxation
as is above mentioned they shall give notice to the person whose bill has been taxed,
and shall apply to the taxing officer of the High Court to appoint a time for the
review of such taxation, and thereupon such taxing officer shall appoint a time for
the review of, and shall review, such taxation and certify the result thereof. The
Board of Trade shall g^ve to the person whose bill of costs is to be reviewed notice
of the time appointed for the review.

(3.) Where any such review of taxation as is above mentioned is required to be
made by the taxing officer of the High Court, the registrar whose taxation is to
be reviewed shall forward to the said taxing officer the bill which is required to be
reviewed.

(4.) The Board of Trade may appear upon the review of the taxation ; and if,
upon the review of the taxation, the bill is allowed at a lower sum than the sum
allowed on the orig^al taxation, the amount disallowed shall (if the bill has been
paid) be reitaad to the <^oial receiver, or the liquidator, or other person entitled
thereto. The certificate of the taxing officer shall in every case of a review by
him under this rule be a sufficient authority to entitle the person to whom the
amount disallowed ought to be repaid to demand such amount from the person
liable to repay the same.

(5.) The costs of and incidental to the review shall be paid out of the assets of
the company or otherwise as the taxing officer or the Court may direct : Provided
that the costs of the attendance of a principal shall not be allowed if in the
opinion of the taxing officer he could have been sufficiently represented by his
London agent. [R. 30 of 1890, varied — ^which was taken from Bkcy. R. 124. An
appeal lies from the decision of the taxing master of the Court. See £x parU
Jaynety 40 W. R. 624. It has been held in bankruptcy that the rule does not apply
to peffsons litigating with the trustee outside the bankruptcy, but is confined to the
class of persons mentioned in the rule and employed by the trustee. Be Munt^
(1898) 1 Q. B. 287.]

B. 170 (2) of 1908 (formerly R. 28 of April, 1892) is set out above.



This rule is treated as applicable to all bills which hare not been
ordered to be taxed.

A formal certificate or allocatur is now issued by the registrar, and
the bill and original certificate are filed. No stamp is charged for this
certificate.

As to costs of misfeasance summonses, see Anglo- Austrian, Sfc, Misfeasance
Union, (1894) 2 Ch. 622 ; ihid,, (1895) 2 Oh. 891 ; R. S. 0. 1883, proceedings.

F. U U



Digitized by



Google



658



WINDING-UP BY THE COUBT. [ChAP, XLVII.



Higher floale.



Useless
prooeedings.



Solicitor paid
by salary.



Special fees.



Interest on
costs.

Assignment
by bankmpt
solicitor.



Charging
order.



Manchester
and Liverpool
Registries.



Appendix N. 72a, 82a, and 180 (An. Pt. 1904, vol. 2, pp. 199,
200) ; and supra, Chap. XLIV. See also W. Powell and Sons, (1896)

1 Ch. 681 ; followed by StirliDg, J., in Chambers, in Western Counties,
Sfc. Co., May 4th, 1896. And see (1897) 1 Ch. 632.

As to costs of instructions for brief, see Cotisolidated Exploration and
Advance Co,, (1899) 2 Ch. 599.

As to costs on the higher scale, see Ord. LXV. r. 9 ; An. Pr. 1904,
pp. 954, 955 ; Assets Development Co. y. Close Brothers 8f Co., (1900)

2 Ch. 717.

There is no hard and fast rule of taxation that the oostB of a
proceeding, e.g., an examination before an examiner, should not be
allowed unless it has been actually used for some purpose. Bartlett t.
Higgins, (1901) 2 K. B. 230 (C. A.).

As to the costs, as between party and party, of a solicitor paid by
salary, see Henderson r. Merthyr Tydfil Council, (1900) 1 Q. B.
434.

As to not allowing a special fee to leading counsel in a Court of the
Chancery Division when no leader of the Court is available, see Re
Parson, (1901) 2 Ch. 176.

As to interest on costs, see Edge Sf Sons v. W. Gallon I* Sons, W. N.
(1899) 137.

As to the effect of an assignment by an undischarged bankrupt of
his taxed biU of costs as solicitor for a petitioning creditor, see Re
Beall (1899) 1 Q. B. 688.

As to power to make charging order for costs recovered or preserved,
see Re Deakin, Ex parte Daniell, (1900) 2 Q. B. 489; Re Bom, Cur-
nock V. Born, (1900) 2 Ch, 433.

The taxation of party and party costs in the Liverpool and Man-
chester District Kegistries proceeds on the same principles as obtain
in the London Taxing Masters' Offices, where the costs in other district
registries are taxed.

There is no hard and fast rule that in no case, where proceedings
have been initiated in a district registry and are heard in London on
affidavit evidence only, will the costs of the country solicitors' attend-
ance at the hearing in London be allowed.

Such costs may be allowed in very exceptional cases, where no
London agent has been employed, e.g., where charges of fraud or
personal misconduct have been made and have failed. In re Dixon,
Tousey v. Sheffield, (1898) 2 Ch. 443.



Form 642. Upon the applicon of the off reor and liqr of the above-named coy,
by summons dated the 7th July, 1892, and upon hearing the solor for
the applicant, and upon reading the order to wind up the above-named



Order to tax
costs of



Digitized by



Google



COSTS. 659

007 dated 6th March, 1891, It is ordered that it be referred to the offidalre-
taxing master to tax the costs, charges and expenses of the applicant, ^JJ^ator.
the off recr and liqr of the above-named coy, as between solor and
client from the time of his appointment up to and including this order,
but in taxing such costs the taxing master is to have regard to any
sums of money arising on account of or in respect of the costs of
compromises with any contributories or otherwise. Allchin, Linnell Sf
Co., No. 10 of 1891. Eeg., 21st June, 1892.

The piaotioe now is to direct the coste to be ** taxed," withoat saying by
whom.

Whether the official receiver or someone else is liquidator he will not, haying
regard to B. 170 (2) of 1903 (see aboye), nudce any payment nntil it has been
allowed. The practice, as approved by the jndge, is for the Uqmdator*s solicitor to
deliyer his biU of costs to his client, who then snbmits it to the registrar nnder
B. 170 (2) for taxation, and no order is necessary. See Boles, tupra^ p. 666.



Upon the applicon of S., the off recr and liqr of the above-named Form 643.
coy, by summons dated, &c., and upon the applicon of W., by Qrder
summons, dated, &c., and upon hearing, &c., and reading, &c. It is declaring
ordered that the claim of the sd W. be allowed at the sum of 50/., S^^^l)^
together with costs, and including in such costs the costs of these &c. nnder
applicons to be taxed, and it is ordered that it be referred to the [g^Q ^^
proper taxing master to tax the costs of the said H. as prov liqr from directing
the time of his appointment, and of this order, and the costs of the sd *"**^<^°'
8., the off recr, as prov liqr and liqr (if any). And it is ordered that
the sd n. be allowed the sum of 50/. in full for his remuneration as
such prov liqr. And it is ordered that the sd off recr and liqr do pay
out of the money now standing to the credit of the liqr, in the following
order of priority, as far as the same will extend : — To W. the sum of
50/. and his taxed costs. The sum of 200/. 8«. bd, certified to be due
to the sd B., as prov liqr, for realizing and protecting the assets of the
sd club. The taxed costs of the sd H., as such prov liqr. The off
recr's fees, and his expenses and disbursements, including the sum of
12/, 1*. incurred for the valuation of the coy's ppty and effects. The
costs of the off recr, as prov liqr and liqr, when taxed. The costs of
the petitioning creditors and the coy appearing on the petition and
certified by the taxing master. The sum of 12/. 12«. allowed by the
off recr for the preparation of the statement of the coy's affairs. The
sum of 50/. the remuneration of the sd H., as assessed. Unionist Club,
Umtd, U. 0126, 1891. Chitty, J., 14th March, 1891.

And see London MttalUtrgieal Co,, (1896) 1 Oh. 768.

U u2



Digitized by



Google



660



WINDING-UP BY THE COURT. [ChAP. XLVII.



Form 644.

Order to tax

OOtitS of
liquidator,
and appoint-
ing creditor* 8
lepresentatiye
to attend
taxation.



Upon the applicon of the off liqr of the above-named 007, and npon
hearing the solor for the applicant, and upon reading two seyeral
orders dated resply, &o., the chief clerk's certificate dated the 20th
and filed the, &c., It is ordered that it be referred to the taxing mast^
to tax the costs, charges, and expenses of the applicant, as such off
liqr, as between solor and client from the time of his appointment up
to and including this order. And it is ordered that Messrs. B. and B.,
of, &c., solors, be appointed creditors' representatives in the above
matters for the purpose of attending the taxation of the sd costs of the
off liqr in the above matters. And it is ordered that the costs, charges
and expenses of the sd Messrs. B. and B. of and incident to such
taxation and of this applicon be taxed. Amuf and Nawf Provision
Markt, Limtdf Pearson, J., 4th June, 1885.



Another.



Form 64S. Upon the applicon of the exors of L. deceased, &c., Order that
Mr. H. Y., of, &c., solor, be appointed creditors' representative in
the above matters for the purpose of attending the taxation of the
costs both of the prov and off liqr in the above matters, other than the
costs of such off liqr relating to the conservation and realization of the
ppty of the sd coy situate in the county of C. And order that the
costs, charges, and expenses of the sd H. Y. of and incident to such
taxation and of this applicon be taxed, and when so taxed be pd by
the sd off liqr out of such assets of the sd coy (if any) as may be
available for that purpose. And order that the costs of the applicants
of this applicon be paid by the off liqr, and be included and allowed
in his own costs. And order that the costs of the off liqr of this
applicon be costs in the winding-up. Cornish Consolidated^ Sfc, Corpo-
ration, Malins, Y.-C, 11th April, 1878. A. 724.



Creditor's

representa-

tive.



Formerly a creditors' representative was very oommonly appointed, bat eren
under the old praotioe snoh an appointment was rarely made except for some
limited purpose. See Maelvtr't Claim, 5 Oh. 424 ; 23 L. T. 38 ; 18 W. B. 794.
One was appointed in B0 Hansard Union, 2nd Nov. 1891, Chitty, J. A. 1449.
Form 145.



Form 646.

Taxoosts,
indnding
costs of
action.



Tax, &o., including, &c., and including the pit's costs of the action
brought by the above-named coy against G-. and others, now pending
in this Ot, the distinctive mark to such action being, &c., as between
solor and client; but in taxing, &c. Lisbon Steam Tramways Co.,
Limtd, Malins, Y.-O., 15th June, 1878. B. 1158.



Digitized by



Google



COSTS. 661

Order that the applicant, the ed D., do pay to the sd reepts L. Form 647.
and W. their costs of this applioon, such costs to be taxed. And order for
that the applicant be at liberty to recoup himself out of the present or liquidator to
any future assets of the above-named coy the amount of the costs so ^ooup out of
ordered to be pd by him as afsd, and his own costs of this applioon. assets.
Borough Commercial^ Sfc. Soc.^ 1892. B. 1199. Vaughan Williams, J.,
14th Feb. 1893.



Tax, &c., and also including the costs of and relating to the appeal Form 648>
in the case of P. W., and J., and H., contributories of the sd coy. Order to tax,
Wincham Ship, Sfc. Co., Bacon, V.-C, 3rd June, 1878. B. 1085. See ^^^^^
Silver Valley Mines, vhi supra, appeal.



Upon the applicon of Messrs. M. and M., the late solors for W., Form 649.
the oS. liqr of coy, and upon hearing the applicants and the now Order where
solors for the sd off liqr, and upon reading the order dated, &c., Eefer ^^^^^
it, &c., to tax the costs, charges, and expenses of the sd W., as such
off liqr as afsd, during the time when the sd applicants were his
solors, from the 17th June, 1876, down to 14th June, 1877, when the
now solors of the sd off liqr were appointed, including therein the
costs of the applicon and of this order, and in taxing such costs
\regard compromise], Lisbon Steam Tramways, Malins, V.-O.,
20th June, 1877. B. 1127.

Where the official Hqaidator changes hiB solioitors, and the assets are not sufficient
to pay the whole of the costs of the suooessiye solicitors, the solicitors will, as a
general rule, be paid rateably so far as the assets will extend. In re AudUy Hall,
i0. Go,, 6 Eq. 246 ; 87 L. J. Ch. 904.



Tax, &c., from the foot of the last taxation, including therein the Form 650.

final order to dissolve the above coy, but in taxing such costs, &o. Ordertotax~^

Proprietors of Kingston Co., Chitty, J., 9th Feb. 1883. A. 138. costs up to

dissolation.



1. We, each speaking positively for himself, and to the best of his Form 661.
knowledge and belief as to other persons, say : that we have not, nor ^^^avitasto
have nor has either of us, nor have nor has any other persons or costs received
person by our or either of our order, or for our or either of our use, ^^^j^
received any sum or sums of money in respect of the costs of the [off] ko.



Digitized by



Google



662



WINDING-UP BY THE COURT. [ChAP. XLVII.



liqr of the above-named coj [save and except the Bums mentd in the
first schedule hto].

2. And we, each speaking, &c., any sum or sums of money in
respect of the costs of compromises with any oontribntories of tiie
sd coy or otherwise [save the sums mentd in the second schedule
hto].

An affidayit by the liquidator and his solidtor, as aboye, is requisite on
taxation.



Form 662.

Notice from

office to
parties to
feaye hill for
taxation
where official
receiver
concerned.



No. — of 19—.
High Ct of Justice.

Cos (Winding-up), Bankruptcy Buildings,

Carey Street, W.O., , 19—.

In the Matter of the Cos Acts, 1862 to 1900,

and

In the Matter of .

The bills of costs, the taxation whereof is directed by the order

made in the above-mentd matters on the of , 19 — , are to

be left at the office of the off recr, 3.3, Carey Street, W.C, on or
before day, the — ^ of , 19 — .

See Rr. 161 and 162 of 1903, and note thereto, iupra.



Form 653.

Notice from

ofKce where
bill not to be
lodged with
official
reoeiyer.



(Address and title as above.)

The bills of costs, the taxation whereof is directed by the order made

in the above-mentd matters on the of , 19 — , are (with all

necessary papers and vouchers) to be left at this office on or before the
day of , 19—.



Form 654.

Notice (from
reffristrar*s
offtce) of
taxation.



{Address and title as above.)

The taxation, pursuant to order dated the day of , 19—

[^or, of the bill of costs of Messrs. ], will be proceeded with on

day, the of , 19 — , at o'clock.

To the Off Recr .

To the Liqr [or as may be'].



Digitized by



Google



COSTS. 663

{Title.) Form 666.

I hby certify that I have taxed the bill of costs [or charges] OeHifioateof
[or expenses] of Mr. C. D. [^here state capacity in which employed or ™*"*'^*
engaffe{f\ [where necessary add^ " pursuant to an order of the Ot, dated 1903.

the day of , 19 — "], and have allowed the same at the

sum of pounds shillings and pence [where necessary

add, " which sum is to be pd to the sd 0. D. by , as directed by.

the sd order "].

Dated this day of , 19 — .

£ : , Taxing Master [or Eegr].



High Ot of Justice. — Chancery Division. Form 668.

In pursuance of an order dated, &c., I have been attended by the taxation

solors for , and I certify that I have taxed the costs specified in ^^ "I

the schedule subjoined hto, directed to be taxed by the sd order, at fu^d in
the sums resply stated in the schedule ; which sums, with the fees of Court,
taxation specified (if any), amount to the total sum of /.

Dated this day of , 19—.

H., Begr, Cos (Winding-up).



SCHSDTTLE.

The schedule is divide into three oolnnms, headed — *' Costs of"; "Payable
to " ; << Amount of taxed costs and fees." The second oolonm is sub-divided, the
sub^visions being headed—** Name " and ** Address."

The above form is used in liquidations, and also in debenture actions.



{FuU ordinary title.) Form 657.



In pursuance of an order in this matter dated, &c., I hby certify Anotiier
that I have been attended by the respive solors for the applicant, R. C. under an
(the legal personal representative of Q-. C), and for X., the liqr of the o>^er *» ta^i
above-named coy, and the bill of costs of the sd B. C. by the sd order f^^^ ^

directed to be taxed, I have taxed at the sum of /., including the Court.

fees of taxation.

Dated the day of , 19—.

H., Eegr.



And I find that the sum of 130/. has been received in respect of Form 668.
compromises with contributories or otherwise, which being deducted Knaing in



Digitized by



Google



664



WINDING-UP BY THE COURT, [ChAP. XIjVII-



oertifioate as from the sd sum of 400/., there remains the sum of 270/., which is due

oeived from ^ respect of such costs. All which I humbly certify to this Honour-

oontribu- fthle Ct.
tonee.



Form 669. In pursuance of the order made herein, dated the day of ,

Another. ^^ — » ^ ^^7 certify that I have taxed at the sum of /. the costs

thereby directed to be taxed, after having regard to the sum of /.,

received in respect of costs of compromises with oontributorles or
otherwise.

Dated this day of , 19 — .

, Segistrar.

The evidence read consists of an afft of , filed day of ^

19—.



Form 660.

Another,
no sums
reoeiTed.



And I find by the afft of S., filed this of , that not any

sums of money whatever have been received in this respect of com-
promises with contributories or otherwise. All which I humbly x^ertdfy
to this Honourable Ct.



Form 661.

Approval of
bill of costs
by regfistrar
(under R. 28
of April,
1892, DOW
R. 170 (2) of
1903) where
no order
to tax.



{Full ordinary title,)

I have considered the bill of costs of Messrs. , the solors em-
ployed by the off recr and liqr of the above-named coy, in the above
matter [or ''the auctioneers," &c., or as the case may he'] of and
consequent on the liquidation of the sd coy [or^ where the eolor^s
authority has been limtd to certain specified transactions, continue as
follows : — ** relating to (1) taking counsel's opinion as to the liability
of the vendors in respect of breach of contract and generally upon the
legal position of the coy at the date of the winding-up order ; (2) taking

proceedings against , of , for recovery of a book debt of

/." ; or, " (1) obtaining an order for examination, under sect. 115,

of directors and others, and employing counsel for the purpose if
necesscuy ; (2) advising with regard to the syndicate's interest in the

Coy, limtd," or as the case may be], and I have allowed the same

at the sum of /., including the fees of taxation [or, '' and I have

allowed the bill of costs numbered (1) at the sum of /., and the

remainder at /., which together (including the fees of taxation)

amount to /."].

Dated the day of , 19—.

H., Regr.



Digitized by



Google



COSTO.



666



o
go



CO
00



I



■ 'H



I



I



I



I



I



pq



i



§1.



1^



ii



ll



3*8 .



^11



il'



^,5



M?






til



ii^



1^



Form 662.

Register to be
kept by tax-
ing omoer.
Form 91 of
1903.



IP



I



Digitized by



Google



666 WINDING-UP BY THE COURT. [ChAP. XLVII.

Payment of Costs.

No summons or separate order, as onder the old practice, is necessary.

The official receiver pays the amount out of a fund in his hands.

An outside liquidator applies to the Board of Trade for a cheque, which is issued
without prejudice as to whether the amount will be allowed in his accounts. See
Chap. XXV.

As to whether a solicitor can apply himself or only through the liquidator
appointing him, see bankruptcy case oi B0 Bright, (1903) 1 E. B. 785.

Fees.

As to fees generally, in case of a winding-up, see Order as to fees of Deo. 1903,
in Appendix B.

Stamp Duties.

Sect. 16 of Finance Aet, 1896.— Sect. 144 of the Bankruptcy Act, 1883 (which
exempts from stamp duty certain documents relating to the estates of bankrupts
and to bankruptcies), shall apply to the estates of companies wound up by order of
the Court under the Companies (Winding-up) Act, 1890, and to such winding-up, in



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 84 of 152)